[1950] EACA 101

## APPELLATE CRIMINAL

## Before SIR BARCLAY NIHILL, C. J., and MODERA, J.

### REX, Appellant (Original Prosecutor)

ν.

# HARNAM SINGH, Respondent (Original Accused) Criminal Appeal No. 368 of 1950 (*Case Stated*)

## Appeal from decision of Resident Magistrate's Court at Kisumu— H. G. Sherrin, Esq.)

Motor Vehicles Insurance (Third Party Risks) Ordinance, 1945—Insured without

Certificate of Competency or driving licence.

The accused was charged *inter alia* with riding a motor-cycle without a valid third party policy of insurance. He also had no Certificate of Competency or driving licence. The relevant clause of his policy was as follows: —

"Driver: and of the following—

$(a)$ the Insured;

(b) any person driving on the Insured's order or with his permission.

Provided that the person driving is permitted in accordance with the licensing or other laws or regulations to drive the motor-cycle or has been so permitted and is not disqualified by order of a Court of law or by reason of any enactment or regulation in that behalf from driving such motor-cycle."

The accused was acquitted on the ground that this last proviso did not apply to the accused who was the "Insured" and that therefore he held a valid policy.

Held (6-11-50).—That although the learned Resident Magistrate errod in holding that the above quoted proviso of the policy did not apply to the accused nevertheless by reason of section 8 and section 10 (1) of Motor Vehicles Insurance (Third Party Risks) Ordinance, 1945,<br>the accused held a valid policy of insurance and was rightly acquitted.

#### Appellant present, unrepresented.

Somerhough, Deputy Public Prosecutor, for the Crown.

JUDGMENT.—This is an appeal by way of case stated at the instance of the Attorney General against an acquittal of one Harnam Singh by the Resident Magistrate at Kisumu on a count charging him with using a motor-cycle in Station Road, Kisumu, when there was not in force in relation to the user of the vehicle such a policy of insurance or such a security in respect of third party risks as required by section 4 (1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, 1945. The accused was at the same time charged and convicted on three other counts alleging dangerous driving and driving without a Certificate of Competency or an annual driving licence. We are not concerned with these other counts except that the conviction on these counts establishes as was admitted by the accused, that at the time he was apprehended riding his motor-cycle he possessed neither a valid Certificate of Competency nor a driving licence. He did however produce a Certificate of Insurance issued by the Jubilee Insurance Company, Ltd., which after he had examined the learned Magistrate came to the conclusion that the possession of this Certificate of Insurance provided the accused with a complete answer to the charge. He therefore acquitted him on the fourth count.

The learned Magistrate did not at the time record his reasons for coming to this conclusion but he has done so on the case stated. As it is a matter of some public importance to know whether a policy of insurance against third party risks remains valid in respect of such risks when the owner or person driving a motor vehicle with the owner's authority is not lawfully competent to drive such vehicle, this case has been stated in order that the matter may be determined by this Court.

We say at once that but for the provisions of section 8 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, 1945, there can be no doubt that the insurance company in this case under the terms of the policy issued to the accused could have repudiated liability in respect of any third party risks had an accident occurred occasioning injury to a third party when the accused was riding his motor-cycle without a Certificate of Competency or driving licence. We say this because of the clause in the schedule to the policy which reads as follows:-

"Driver: Any of the following—

$(a)$ the Insured;

(b) any person driving on the Insured's order or with his permission.

Provided that the person driving is permitted in accordance with the licensing or other laws or regulations to drive the motor-cycle or has been so permitted and is not disqualified by order of a Court of law or by reason of any enactment or regulation in that behalf from driving such motor-cycle."

The learned Magistrate it would seem from his observations in the case stated came to the view that this proviso was intended to relate only to persons driving the insured vehicle other than the insured himself. That view is not supported by the learned Attorney General, neither can we accept it. We know of no canon of construction which would warrant applying the proviso to one category of driver only, nor does it seem to us consistent with common sense. The word "driver" is defined as meaning either the insured or any person driving on the insured's order or with his permission and the proviso categorically refers to "the person driving" who may be either the insured or the person driving on his order or with his permission. If then, as it seems, the learned Magistrate acquitted the accused because he thought that from the terms of the policy, the insurance company was not entitled to rely on the proviso so far as driving by the insured was concerned, he erred, but it does not necessarily follow that he came to the wrong conclusion although he may have done so for the wrong reason. In paragraph $\overline{9}$ (VIII) of the case stated the Magistrate observes that had he not taken this view he would still have had to consider the effect of section 8 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, 1945, and it is on this point that Mr. Somerhough's argument has been particularly directed. Section 8 of this Ordinance reads as follows: $-$

"Any condition in a policy of insurance providing that no liability shall arise under the policy, or that any liability so arising shall cease in the event of some specified thing being done or omitted to be done after the happening of the event giving rise to a claim under the policy, shall, as respects such liabilities as are required to be covered by a policy under section 5 of this Ordinance, be of no effect:

Provided that nothing in this section shall be taken to render void any provision in a policy requiring the persons insured to repay to the insurer any sums which the latter may have become liable to pay under the policy and which have been applied to the satisfaction of the claims of third parties.

We should perhaps first observe here that the accused who appeared before us personally has stated that the reason why he had no driving licence was because he was a learner who had failed to pass the police test and therefore could not obtain a Certificate of Competency which in this Colony must be first obtained before the licensing authorities will issue a licence. He has stated also that he had a man with him sitting on the back of his motor-cycle who held a Certificate of Competency. If then the accused could establish that Station Road, Kisumu, at 12 noon on 21st February, 1950, was an unfrequented road, which seems unlikely, he would have in any event a defence to the fourth count by reason of the proviso to section 13 (1) of the Traffic Ordinance (Cap. 232 of the 1948 Laws of Kenya) since he would not then be a person unpermitted to drive a motor vehicle.

If then we came to the conclusion that the Magistrate wrongly acquitted the accused on the ground that he possessed a policy of insurance covering third party risks, it would be necessary to remit the case to the Magistrate to hear evidence in order to establish whether accused was or was not at the time of the alleged offence a person permitted under the laws of the Colony to drive a motor vehicle. This however is a hypothetical consideration because in our view, by reason of section 8 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, the insurance company could not in law have escaped liability under the policy in regard to a third party claim on the ground that the insured had failed to observe a condition in the policy.

The relevant words in section 8 for the purposes of this case are the following: -

"Any condition in a policy of insurance providing that no liability shall arise under the policy . . . shall, as respects such liabilities as are required to be covered by a policy under section 5 of the Ordinance, be of no effect."

Amongst the liabilities required to be covered by a policy of insurance under section 5 is the liability which the driver of a motor vehicle might incur in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the vehicle on a road. On the face of it then it is clear that an insurer cannot by the insertion in the policy of some words of limitation avoid satisfying the legally established claim of a third party in the first place although the insurer may have a right subsequently to recover from the insured. That in our view is the effect of the proviso to section 8 read with section 10 $(1)$ of the Ordinance which reads as follows: $-$

Proviso to section $8-$

"Provided that nothing in this section shall be taken to render void any provision in a policy requiring the persons insured to repay to the insurer any sums which the latter may have become liable to pay under the policy and which have been applied to the satisfaction of the claims of third parties. Section 10 $(1)$ -

"If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 of this Ordinance (being a liability covered by the terms of $\frac{1}{2}$ ) the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments."

Sub-sections (2) and (4) of section 10 set out certain circumstances which if obtaining enable an insurer to avoid payment but for the purposes of this case it is sufficient for us to say that there is no evidence before us that any of these circumstances did obtain. Mr. Somerhough has called our attention to condition 6 of the policy which permits either party to cancel the policy by giving seven days' notice to the other. No such cancellation was effected by either party in this instance. We are of the opinion therefore that had an accident occurred to the accused's motor-cycle at 12 noon on 21st February, 1950, involving death or injury to a third party and had such third party or his legal representative subsequently obtained judgment for damages against the accused, the insurer under the policy now before us would have been liable in the first instance to pay those damages to the person entitled. That being our conclusion it follows that we hold that the charge against the accused on the fourth count was not maintainable and that the Magistrate did right to acquit him. The case will not therefore be remitted back to the learned Magistrate for any further action. $\gamma_{1,2}^{\mathcal{L}}$